Bjornsen v. Board of County Commissioners , 2019 COA 59 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 25, 2019
2019COA59
No. 18CA0033, Bjornsen v. Board of County Commissioners —
Administrative Law — Colorado Sunshine Act — Open Meetings
Law — Colorado Open Records Act — Work Product — Work
Product Exceptions
A division of the court of appeals interprets several provisions
of the Colorado Open Meetings Law (COML) and Colorado Open
Records Act (CORA). The division concludes that only certain types
of work product are excluded from the CORA’s definition of public
records and are therefore not open to public inspection. The
division also discusses, but does not resolve, whether there is an
emergency exception to the COML’s rules governing how local
public bodies can convene executive sessions.
COLORADO COURT OF APPEALS 2019COA59
Court of Appeals No. 18CA0033
Boulder County District Court No. 17CV215
Honorable Thomas F. Mulvahill, Judge
Kristin Bjornsen,
Plaintiff-Appellant,
v.
Board of County Commissioners of Boulder County and Frank Alexander, in
his official capacity as Executive Director of the Boulder County Housing
Authority,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE ASHBY
Dunn and Rothenberg*, JJ., concur
Announced April 25, 2019
Kristin Bjornsen, Pro Se
Benjamin H. Pearlman, County Attorney, David Hughes, Deputy County
Attorney, Catherine (“Trina”) Ruhland, Assistant County Attorney, Boulder,
Colorado, for Defendants-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Plaintiff, Kristin Bjornsen, filed claims alleging that
defendants, the Board of County Commissioners of Boulder County
(Board), and Frank Alexander, executive director of the Boulder
County Housing Authority (BHCA), violated the Colorado Open
Meetings Law (COML) and the Colorado Open Records Act (CORA).
She alleged that the Board held executive sessions in violation of
the COML and defendants improperly withheld documents she
requested in violation of both the COML and the CORA.
¶2 The district court granted defendants summary judgment on
the executive session claims and, after a hearing, ruled that
defendants properly withheld the contested documents. Bjornsen
appeals both the summary judgment and document disclosure
rulings. We reverse the summary judgment, reverse two of the
document disclosure rulings, affirm the court’s other rulings, and
remand with directions.
I. Background
¶3 Bjornsen lived in Gunbarrel and was concerned about Boulder
County authorizing an affordable housing development at the Twin
Lakes Open Space. She requested public records related to the
Board’s consideration of this issue under the CORA. Pursuant to
1
her request, defendants provided her with hundreds of pages of
documents. However, defendants determined that some of the
information Bjornsen sought was not subject to public disclosure
under the CORA. Defendants therefore withheld some documents
and redacted parts of others.
¶4 Bjornsen sued defendants, alleging that they wrongfully
withheld certain documents, or parts of documents, under the
CORA and the COML. She also alleged that the Board convened
numerous executive sessions in violation of the COML. The district
court bifurcated the case and addressed the executive session and
document disclosure claims separately. Defendants moved for
summary judgment on the executive session claims, while the
document disclosure claims were set for a hearing.
¶5 Before the hearing, the district court granted defendants’
summary judgment on the executive session claims. However, the
court provided no explanation or analysis to support its ruling. It
neither identified the undisputed facts nor explained the legal basis
for granting summary judgment.
¶6 At the hearing, various witnesses testified, including Bjornsen.
In a written order, the district court ruled that Bjornsen was not
2
entitled to any of the documents she claimed defendants wrongfully
withheld or redacted.
¶7 Bjornsen appeals, arguing that the district court erred by (1)
bifurcating the executive session and document disclosure claims;
(2) granting defendants summary judgment on the executive
session claims; and (3) ruling that she was not entitled to any of the
withheld or redacted documents.
II. District Court Properly Bifurcated the Case
¶8 Bjornsen argues that the district court violated C.R.C.P. 42(b)
by bifurcating the case without making any findings. We see no
reversible error.
¶9 C.R.C.P. 42(b) provides that trial courts may conduct separate
trials on issues or claims brought in the same action “in
furtherance of convenience, or to avoid prejudice, or when separate
trials will be conducive to expedition or economy.” Trial courts have
“broad discretion” to determine when bifurcation is appropriate
under this rule. Gaede v. Dist. Court, 676 P.2d 1186, 1188 (Colo.
1984). A trial court errs only when it abuses that discretion. See
O’Neal v. Reliance Mortg. Corp., 721 P.2d 1230, 1232 (Colo. App.
3
1986). Ordering separate proceedings on different claims is an
abuse of discretion if it “virtually assures prejudice to a party.” Id.
¶ 10 In granting defendants’ motion to bifurcate, the district court
did not make any findings or explain its ruling. We agree with
Bjornsen that the district court should have explained why
bifurcating the claims was proper under C.R.C.P. 42(b). See
Sutterfield v. Dist. Court, 165 Colo. 225, 231, 438 P.2d 236, 240
(1968) (Trial court’s severance of claims was improper because
court “made no finding that any of the conditions permitting
separate trials of properly joined claims were present” under
C.R.C.P. 42(b).).
¶ 11 However, we will not disturb a trial court’s ruling unless it
affected the substantial rights of the parties. C.R.C.P. 61. And
Bjornsen’s opening brief fails to sufficiently explain how the
bifurcation affected her substantial rights. She argues that the
bifurcation “created a presumption – and possible predisposition –
toward summary judgment [and] caused or contributed to: a delay
in the case’s resolution; failure of settlement discussions; and the
exclusion of interrelated evidence at the . . . hearing.” She also
argues that the bifurcation caused her pro bono attorney to
4
withdraw from representing her. But she does not explain how the
bifurcation caused these things to happen, nor does she identify the
evidence that she would have otherwise introduced at the hearing.
Such conclusory arguments are insufficient to establish that her
substantial rights were violated. See Harner v. Chapman, 2012
COA 218, ¶ 37 (lack of substantive argument that evidentiary
“irregularities” prejudiced plaintiff precluded relief), rev’d on other
grounds, 2014 CO 78.
III. District Court Erred by Granting Summary Judgment
¶ 12 Bjornsen next argues that the district court erred by granting
defendants summary judgment on her claims that the Board
convened executive sessions in violation of the COML. We review
the district court’s ruling de novo, see Campaign Integrity Watchdog
v. Coloradans for a Better Future, 2016 COA 56M, ¶ 12, and agree
with Bjornsen.
¶ 13 Summary judgment is a drastic remedy that is appropriate
only if the material facts are undisputed and establish that the
moving party is entitled to judgment as a matter of law. C.R.C.P.
56(c); Westin Operator, LLC v. Groh, 2015 CO 25, ¶¶ 19, 21. The
burden is on the moving party to establish that summary judgment
5
is appropriate. See Meyer v. State Dep’t of Revenue, 143 P.3d 1181,
1184 (Colo. App. 2006). All doubts must be resolved against the
moving party and the nonmoving party is entitled to the benefit of
all favorable inferences that may be fairly drawn from the
undisputed facts. See Westin Operator, LLC, ¶ 20.
¶ 14 When ruling on a summary judgment motion, a court may
consider only sworn or certified evidence. See C.R.C.P. 56(e); Cody
Park Prop. Owners’ Ass’n, Inc. v. Harder, 251 P.3d 1, 4 (Colo. App.
2009).
¶ 15 The COML requires that if a quorum of a local public body,
such as the Board here, meets to discuss public business or take
any formal action, that meeting shall be open to the public. § 24-6-
402(2)(b), C.R.S. 2018. However, a local public body can, for
limited reasons and under certain circumstances, convene an
executive session that is not open to the public. § 24-6-402(4).
Executive sessions can be convened “only at a regular or special
meeting” and only for a purpose enumerated in the COML. Id.
These purposes include receiving legal advice from an attorney on
specific legal questions and discussing the purchase, acquisition,
6
lease, transfer, or sale of any real, personal, or other property.
§ 24-6-402(4)(a), (b).
¶ 16 Entering into executive session requires the vote of two-thirds
of the quorum of the local public body present. § 24-6-402(4).
Before starting the executive session, the local public body must
also announce the topic for discussion in the session with as much
detail as possible without compromising the purpose of meeting in
private. Id. Discussions that occur in executive session must be
electronically recorded unless they are protected by attorney-client
privilege. § 24-6-402(2)(d.5)(II)(A), (B). If an executive session is
convened improperly, the record of the session is open to the
public. See Gumina v. City of Sterling, 119 P.3d 527, 531 (Colo.
App. 2004).
¶ 17 Bjornsen’s complaint alleged that the Board violated the COML
by repeatedly convening executive sessions without first
announcing the topic to be discussed and failing to electronically
record them. The complaint identified several specific dates and
times at which these alleged violations occurred. Based on these
alleged violations, Bjornsen asked for (1) a declaratory judgment
that the Board had repeatedly violated the COML and (2) injunctive
7
relief ordering the Board to comply with certain practices going
forward.
¶ 18 In their motion to the district court, defendants argued that
they were entitled to summary judgment on alternative grounds.
First, they argued that the Board’s executive sessions always
complied with the COML. Second, they argued that the declaratory
and injunctive relief Bjornsen sought was not available as a matter
of law.
¶ 19 We have no idea on what grounds the district court granted
summary judgment because the court made no findings and
provided no analysis. C.R.C.P. 52 does not require that courts
make findings of fact and conclusions of law when ruling on
summary judgment. But the comment to that rule states that “even
where findings and conclusions are not required, the better practice
is to explain in a decision on any contested, written motion the
court’s reasons for granting or denying the motion.” C.R.C.P.
52 cmt. And where, as here, the motion articulated alternative
bases on which the court could grant summary judgment and the
opposing party was pro se, we strongly discourage granting
summary judgment without factual findings or analysis.
8
¶ 20 Nevertheless, because we review summary judgment rulings
de novo, the district court’s failure to make findings or articulate its
rationale does not abrogate our responsibility to review whether
summary judgment was appropriate. And we conclude that
summary judgment was not appropriate.
A. COML Violations
¶ 21 The undisputed facts did not establish that the executive
sessions identified by Bjornsen complied with the COML. As
mentioned above, a court can consider only sworn or certified facts
when evaluating a motion for summary judgment. See C.R.C.P.
56(e); Cody Park Prop. Owners’ Ass’n, Inc., 251 P.3d at 4. We must
disregard unsworn exhibits or documents attached to motions, as
well as unsworn exhibits or documents attached to an unverified
complaint.
¶ 22 Defendants submitted hundreds of pages of documents in
support of their motion for summary judgment. But the vast
majority of these were not sworn statements. The only sworn or
certified evidence defendants submitted was a ten-page joint
affidavit from three county employees.
9
¶ 23 Similarly, Bjornsen supported her response to defendants’
motion by referring to her complaint, the exhibits attached to it,
and a single email attached to her response to defendants’ motion.
But none of the documents Bjornsen relied on were proper
summary judgment evidence because they were all unsworn and
uncertified.1
¶ 24 Consequently, we are left to determine whether the facts set
out in defendants’ joint affidavit established that the Board’s
executive sessions complied with the COML. We conclude that they
do not.
¶ 25 The joint affidavit did not address the individual executive
sessions that Bjornsen alleged violated the COML. Instead, the
affidavit described the Board’s general practices during the period of
the contested executive sessions and stated that the Board always
followed those general practices. It further stated that “upon
information and belief” those general practices were followed for
1 After the court granted the defendants’ summary judgment
motion, Bjornsen filed a motion to reconsider and attached an
affidavit to that motion. But because we reverse the district court’s
summary judgment order, we need not address her motion to
reconsider or any evidence attached to it.
10
each of the meetings that were alleged to be noncompliant with the
COML.
¶ 26 Significantly, the affidavit stated that it was the Board’s
general practice to convene an executive session after announcing
its topic at a regular or special meeting, citing to the provision of
the COML that authorized the session, and voting to approve the
session. But the affidavit also stated:
In the rare and unavoidable event that an
executive session is necessary prior to the
ability of the [Board] to convene during a
Public Meeting and the [Board] must hold an
executive session without prior notice, the
[Board] will then give full and proper notice of
the executive session . . . at the next regular or
special meeting.
¶ 27 We understand this to mean that one of the Board’s general
practices was to convene executive sessions outside of a regular or
special meeting, without announcing the topic or otherwise noticing
the session beforehand, if doing so was “unavoidable” and
“necessary.” We conclude that this practice violated the COML’s
requirements that executive sessions be convened only at regular or
special meetings and only after the topic is announced in as much
detail as possible. See § 24-6-402(4).
11
¶ 28 Citing to Lewis v. Town of Nederland, 934 P.2d 848 (Colo. App.
1996), defendants suggest that there is an emergency exception
that is applicable to executive sessions. But Lewis did not address
executive sessions and defendants do not develop this argument or
explain how the Board’s practices would fall within such an
exception if one even exists. 2 We therefore do not address this
2 We recognize that, in Arkansas Valley Publishing Co. v. Lake
County Board of County Commissioners, 2015 COA 100, ¶ 21,
another division of this court suggested, in dictum, that an
executive session called without notice due to an emergency is “a
recognized exception to the twenty-four-hour notice requirement” in
section 24-6-402(2)(c), C.R.S. 2018 (requiring posting of the
anticipated agenda of the meeting in a public place at least
twenty-four hours before the meeting is to be held). We are
unaware of any such “emergency exception” in the COML.
The Arkansas Valley division cited Gumina v. City of Sterling, 119
P.3d 527, 531 (Colo. App. 2004), and Lewis v. Town of Nederland,
934 P.2d 848, 851 (Colo. App. 1996), for this proposition. However,
Gumina considered the issue of when a local public body may
convene an executive session. It did not address the so-called
“emergency exception” proposed by the Board in this case. The
Lewis division construed a local ordinance that permitted the
Nederland Board of Trustees to meet
in the event of an emergency that requires the
immediate action of the Board of Trustees in
order to protect the public health, safety, and
welfare of the residents of Nederland . . .
provided however, any action taken at an
emergency meeting shall be effective only until
the first to occur of (a) the next regular
12
issue. See Taylor v. Taylor, 2016 COA 100, ¶ 13 (declining to
address conclusory contention unsupported by substantial
argument).
¶ 29 Resolving all inferences against defendants, as we must on
summary judgment, we conclude that the affidavit did not establish
that the Board convened executive sessions in compliance with the
strict requirements of the COML. Based on this conclusion,
defendants were not entitled to summary judgment on the ground
that the undisputed material facts established that they complied at
all times with the COML.
¶ 30 We are not persuaded otherwise by defendants’ arguments
that (1) they need not strictly comply with the COML’s executive
session provisions and (2) they cured any COML violation that did
meeting, or (b) the next special meeting of the
Board at which the emergency issue is on the
public notice of the meeting.
Lewis, 934 P.2d at 850. The Lewis division observed that (1) the
COML has no express language permitting the manner in which its
requirements would apply in emergency situations and (2) local
ordinances in conflict with state laws are void. But the division
noted “that plaintiff has not appealed the trial court’s determination
that an emergency existed,” and simply found “no true conflict”
between the COML and the Nederland ordinance. Id. at 851.
Neither Gumina nor Lewis recognized an emergency exception in
the COML.
13
occur under Colorado Off-Highway Vehicle Coalition v. Colorado
Board of Parks and Outdoor Recreation, 2012 COA 146. First,
Gumina made clear that local public bodies must strictly comply
with the COML’s requirements for convening executive sessions.
Gumina, 119 P.3d at 530 (“We conclude that because the [local
public body] did not strictly comply with the requirements for
convening an executive session, the two sessions were open
meetings subject to the public disclosure requirements of [COML].”).
¶ 31 Second, defendants’ reliance on Colorado Off-Highway Vehicle
Coalition is misplaced. In that case, another division of this court
held that a public body could cure an improperly convened
executive session by holding a subsequent meeting that was open to
the public to consider the matters discussed in the executive
session. Id. at ¶ 33. But the subsequent meeting must not be a
mere rubber stamping of the decision made in the improperly
convened executive session. Id.
¶ 32 Defendants’ affidavit did not establish that they cured any
improperly convened executive sessions by discussing the subject
matter of those sessions at a later meeting that was open to the
public. Instead, the affidavit stated that after convening a
14
non-COML-compliant executive session, the Board would merely
retroactively notice it at the next public meeting. But under
Colorado Off-Highway Vehicle Coalition, retroactive notice does not
cure an improperly convened executive session. Id.
B. Declaratory and Injunctive Relief
¶ 33 We also disagree with defendants’ arguments that they were
entitled to summary judgment because the relief Bjornsen
requested was unavailable to her as a matter of law. Defendants
argue that Bjornsen was not entitled to declaratory relief because
such relief is not an available remedy for a COML violation. It is
true that the COML does not mention declaratory relief. But
C.R.C.P. 57 provides that declaratory relief is available in a wide
variety of circumstances, including those here. Under the rule,
“[a]ny person . . . whose rights, status or other legal relations are
affected by a statute . . . may have determined any question of
construction or validity arising under the . . . statute.” C.R.C.P.
57(b). The rule also states that “[n]o action or proceedings shall be
open to objection on the ground that a declaratory judgment or
decree is prayed for.” C.R.C.P. 57(a).
15
¶ 34 Bjornsen’s action here is certainly one to determine her
statutory legal rights under the COML. And defendants cannot
object to her action on the ground that she seeks declaratory relief.
Id. She was therefore free to pursue declaratory relief for the
alleged COML violations.
¶ 35 Defendants’ arguments that Bjornsen was not entitled to
injunctive relief also fail. The COML specifically authorizes courts
to “issue injunctions to enforce the purposes of [COML] upon
application by any citizen of this state.” § 24-6-402(9)(b).
Defendants argue that Bjornsen was not entitled to injunctive relief
because the undisputed facts established that they complied with
the COML. But, as we discussed above, they did not. 3
¶ 36 We therefore conclude that defendants were not entitled to
summary judgment on the grounds asserted in their summary
judgment motion and the district court erred by ruling otherwise.
3 We need not decide whether Bjornsen may have been entitled to
all of the specific injunctive relief that she requested in her
complaint. But we conclude on the basis of the discussion above
that she may have been entitled to some of it. And that is enough
to establish that granting defendants’ summary judgment motion
because Bjornsen was not entitled to any injunctive relief was
improper.
16
IV. Document Disclosure Claims
¶ 37 Bjornsen also challenges several of the district court’s rulings
that the Board properly withheld or redacted various documents.
We address each of these arguments separately and conclude that
two of them warrant relief.
A. “Your Opinion Matters” Draft Emails
¶ 38 Bjornsen argues that the district court erred by ruling that
defendants properly withheld drafts of an email that was eventually
sent to the public by Frank Alexander, the unelected executive
director of the BHCA. The district court ruled that these drafts
were work product and therefore not a public record subject to
disclosure under the CORA.
¶ 39 We review the district court’s factual findings for clear error,
see E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22 (Colo.
2000), but review the construction and application of the CORA de
novo, see Harris v. Denver Post Corp., 123 P.3d 1166, 1170 (Colo.
2005). We conclude that the district court erred by ruling that the
draft emails here were not public records.
¶ 40 The CORA provides that public records shall be open to public
inspection. § 24-72-203(1)(a), C.R.S. 2018. “Public records” means
17
“all writings made, maintained, or kept by [a] political subdivision of
the state . . . for use in the exercise of functions required or
authorized by law or administrative rule or involving the receipt or
expenditure of public funds.” § 24-72-202(6)(a)(I), C.R.S. 2018.
¶ 41 Not included in the CORA’s definition of public records are
certain kinds of work product. The CORA defines work product in
section 24-72-202(6.5)(a):
“Work product” means and includes all intra-
or inter-agency advisory or deliberative
materials assembled for the benefit of elected
officials, which materials express an opinion or
are deliberative in nature and are
communicated for the purpose of assisting
such elected officials in reaching a decision
within the scope of their authority.
¶ 42 The two kinds of work product that are excluded from the
definition of public records and are therefore not open to public
inspection are (1) work product in “the correspondence of elected
officials,” § 24-72-202(6)(a)(II)(A); and (2) work product “prepared for
elected officials,” § 24-72-202(6)(b)(II).
¶ 43 The draft emails at issue here were prepared by BHCA staff at
the direction of Alexander. He asked his staff to draft an email that
he would eventually send out to the public encouraging citizens to
18
participate in upcoming meetings about the proposed Twin Lakes
affordable housing development. At the hearing, when asked who
directed him to send out the email, the following exchange
occurred.
[Alexander]: Well, it’s my decision as the
department head to send out the email. But
on behalf of the board of county
commissioners, this particular project has
been a very high visibility project. The most
visible of all affordable housing projects I’ve
been involved with in my 25-plus year career.
And because of the nature of the sensitivity
and the involvement of the public, the board of
county commissioners really wanted to hear
from all sides on this issue and ensure that
the planning commission did as well, and
ensure that the applicant, which was the
housing authority, had a fair hearing as well
as all members of the public.
....
[Defendants’ Counsel]: So was the email
drafted for the benefit of the elected officials?
[Alexander]: Yes.
¶ 44 Based on this testimony, the drafts qualified as work product
because they were “assembled for the benefit of elected officials.”
§ 24-72-202(6.5)(a). The goal of sending an email to the public was
19
to help the county commissioners resolve a contentious issue. And
the drafts were the first step in this process.
¶ 45 But as discussed above, only two categories of work product
are excluded from the CORA definition of public records: (1) work
product in the correspondence of elected officials, § 24-72-
202(6)(a)(II)(A); and (2) work product “prepared for elected officials,”
§ 24-72-202(6)(b)(II).
¶ 46 The drafts were not part of the correspondence of elected
officials; there was no evidence that the elected county
commissioners ever sent or received them. And although Alexander
testified that the drafts were prepared “for the benefit of [the county
commissioners],” he did not testify that they were prepared for the
county commissioners. Instead, he testified that he asked his staff
to prepare the drafts for him because he thought they might be
helpful for the commissioners. The commissioners did not ask for
the drafts and the drafts were not sent to the county
commissioners. Ultimately, Alexander sent an email to the public
which was based on the drafts that his staff had prepared for him
at his direction. Under these circumstances, we conclude that the
drafts were prepared for Alexander, an unelected appointee. Thus,
20
although the drafts were work product under section 24-72-
202(6.5)(a), they were not prepared for an elected official under
section 24-72-202(6)(b)(II). The drafts therefore constituted public
records that Bjornsen was entitled to inspect.
B. Redacted Commissioner Emails
¶ 47 Bjornsen next challenges the district court’s ruling that
defendants properly redacted five emails she requested under the
CORA and the COML. She argues that the district court made
factual findings that were clearly erroneous. We agree that the
district court made clearly erroneous factual findings. But we
conclude that these errors affected only the court’s ruling that the
redactions were proper under the COML. We therefore reverse that
ruling and affirm the court’s ruling that the redactions were proper
under the CORA.
¶ 48 In ruling that the redactions were proper under both statutes,
the district court found that all five emails in question were among
staff, not the elected county commissioners. As the district court
wrote in its order:
The County called Deputy County
Commissioner Michelle Krezek who testified
that the redacted correspondence occurred
21
only between Boulder County staff members,
that there were no emails between Boulder
County Commissioners, and that the emails
were sent prior to any decision-making by the
Commissioners (elected officials). The Court’s
in camera review of the emails confirms Ms.
Krezek’s testimony
....
Even a cursory review of the emails shows that
there was no discussion among or between
elected officials.
¶ 49 This was clear error. The emails containing the redactions
were not communications between only staff. Four of the five
emails were sent from a commissioner to at least one other
commissioner. And the fifth was sent from a commissioner to a
recipient who appeared to be county staff.
¶ 50 However, we conclude that this error does not require us to
reverse the district court’s ruling that the redactions were proper
under the CORA. As explained above, the CORA provides that local
public bodies may withhold work product from public disclosure if
it is either part of the correspondence of elected officials or prepared
for elected officials. § 24-72-202(6)(b)(II). The district court held
that the redactions were work product that was prepared for elected
officials, conclusions that Bjornsen does not challenge on appeal.
22
(“The emails reflect materials, including advisory and deliberative
materials from employees, gathered for elected officials in advance
of their decision regarding the Twin Lakes Proposal. Moreover,
many of the redacted portions of these emails also likely fall under
the definition of notes and memoranda relating to and serving as
background information for the elected officials.”). The senders’ and
recipients’ identities were irrelevant to this holding. Therefore, the
district court’s clearly erroneous identification of the senders and
recipients did not affect the propriety of the court’s ruling that the
redactions were proper under the CORA. If anything, had the
district court properly identified the senders and recipients of the
emails in question as including elected commissioners, the court
would have had an alternative ground on which to uphold the
redactions (as work product in the correspondence of elected
officials).
¶ 51 In contrast, the district court’s clearly erroneous factual
findings do require us to reverse its ruling that the redactions were
proper under the COML. The COML requires that all meetings of a
quorum of a local public body to discuss public business or take
formal action be open to the public. § 24-6-402(2)(b). This applies
23
to elected officials’ use of “electronic mail to discuss pending
legislation or other public business among themselves.” § 24-6-
402(2)(d)(III).
¶ 52 The district court held that the redacted material did not
constitute public meetings under the COML because “[e]ven a
cursory review of the emails shows that there was no discussion
among or between elected officials.” The district court was wrong,
as discussed above. And because the court relied on this clearly
erroneous factual finding in ruling that the redacted material did
not constitute a public meeting, we must reverse this ruling. On
remand, the district court should make new factual findings
supported by the record and determine whether, in light of those
findings, the redactions were proper under the COML.
C. Gunbarrel Zoning Notes
¶ 53 Bjornsen also argues that the district court erred by ruling
that she was not entitled to a privilege log for the “Gunbarrel Zoning
Notes” document that defendants withheld under attorney-client
privilege. We disagree.
¶ 54 Privileged information, including information falling under the
attorney-client privilege, is not subject to public inspection under
24
the CORA. § 24-72-204(3)(a)(IV), C.R.S. 2018. The attorney-client
privilege extends only to matters (1) communicated by or to the
client in the course of gaining counsel, advice, or direction about
the client’s rights or obligations; and (2) under circumstances giving
rise to a reasonable expectation that the statements will be treated
as confidential. Black v. Sw. Water Conservations Dist., 74 P.3d
462, 467 (Colo. App. 2003). The party claiming the privilege has
the burden of establishing that it applies. Id.
¶ 55 At the hearing, the deputy county attorney testified that he
authored the Gunbarrel Zoning Notes document to provide his
clients, the county commissioners, with legal advice. He further
testified that he shared the document only with his clients and that
he did so with the reasonable expectation that it would remain
confidential. Bjornsen presented no evidence to the contrary, and
the district court relied on this testimony in ruling that the
document was protected from disclosure by attorney-client
privilege.
¶ 56 Bjornsen argues that the deputy county attorney’s testimony
was insufficient to establish that the privilege applied. She
suggests, without evidence, that the document was shared with
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people other than the deputy county attorney’s clients, which
meant that there was no reasonable expectation that the document
would remain confidential. She claims that the only way to
establish that the document was not shared beyond the deputy
county attorney and his clients was to provide her with the
document’s privilege log, which would have presumably showed
whether parties other than the clients accessed the document.
¶ 57 Bjornsen provides no authority, and we are aware of none, for
the proposition that disclosing a privilege log is the only way to
establish that a document was not shared beyond an attorney and
the attorney’s clients. Absent such authority, we conclude that the
deputy county attorney’s testimony, given under oath, that only his
clients viewed the document was sufficient.
D. Alleged Nondisclosure of Witness Testimony
¶ 58 Finally, Bjornsen contends that the district court erred by
denying her motion, filed seven days after the hearing, arguing that
defendants failed to disclose that two witnesses would testify about
specific topics. Like defendants, we question whether Bjornsen’s
failure to raise this issue until a week after the hearing waived her
ability to challenge any lack of disclosure. But we need not resolve
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that question. Even if Bjornsen did not waive this issue, she has
failed to explain how the lack of disclosure prejudiced her. She
states only that the lack of disclosure surprised her, leaving her
with no opportunity to prepare questions or defend herself.
Because she does not explain how the lack of disclosure “materially
prejudiced [her] case,” we perceive no error. Mullins v. Med. Lien
Mgmt., Inc., 2013 COA 134, ¶ 43 (no error in allowing undisclosed
witness to testify because aggrieved party did not argue that
nondisclosure materially prejudiced his case).
V. Conclusion
¶ 59 The summary judgment in favor of defendants on Bjornsen’s
executive session claims is reversed. The district court’s order
denying Bjornsen access to the “Your Opinion Matters” draft emails
is also reversed, along with its ruling upholding the redactions to
the commissioner emails under the COML. The remainder of the
district court’s order is affirmed.
¶ 60 The case is remanded to the district court with directions to
conduct further proceedings on Bjornsen’s executive session claims
consistent with this opinion. We also direct the district court to
reconsider whether the redactions to the commissioner emails were
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proper under the COML. The court may conduct whatever further
proceedings it deems necessary to make new factual findings
supported by the record and determine whether, in light of those
findings, the redactions were proper under the COML.
JUDGE DUNN and JUDGE ROTHENBERG concur.
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